IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17361 of 2010(U)
1. K.NARAYANANKUTTY,
... Petitioner
2. K.REKHA, W/O.K.NARAYANANKUTTY,
3. K.REMADEVI, KUNDIL HOUSE,
Vs
1. THE AUTHORIZED OFFICER,
... Respondent
2. THE MANAGER, PUNJAB NATIONAL BANK,
3. P.A.SALAVUDEEN, M/S.FASHION MAGIC,
For Petitioner :SRI.C.A.CHACKO
For Respondent :SRI.K.P.SUDHEER
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :27/09/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.17361 of 2010-U
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Dated this the 27th day of September, 2010.
J U D G M E N T
The petitioners are the guarantors with respect to a
working capital loan availed by the third respondent, from
the second respondent Bank, in the year 2008. Consequent
to default committed by the third respondent, immovable
properties belonging to the petitioners, which were
mortgaged for securing the loan in question, were
proceeded against. On invoking Section 14(1) of the Act
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act).
respondents 1 and 2 had approached the Chief Judicial
Magistrate Court and an Advocate Commissioner was
already been appointed to take over possession of the
immovable properties. Ext.P2 is the notice issued by the
Advocate Commissioner requesting to handover possession
of the immovable properties. The proceedings is impugned
on various grounds.
W.P(C) No.17361 of 2010-U 2
2. In a counter affidavit filed on behalf of the
respondents 1 and 2 it is alleged that the third respondent,
in collusion with the petitioners, had diverted the funds and
closed down the business. It is contended that the
petitioners are now adopting delaying tactics in collusion
with the third respondent. With respect to the request of
the petitioners to permit regularisation of the loan account,
it is mentioned that, since there is diversion of funds and
closing down of the business the loan account could not be
regularised. It is mentioned that, as on 30.8.2010, a sum of
Rs.11,95,000/- is the outstanding dues.
3. It is pertinent to note that the proceedings
initiated under the SARFAESI Act is at the stage of Section
14(1). The petitioners had not chosen to object the demand
raised under Section 13(2) nor they have approached the
appellate authority invoking Section 17(1). Fact being so, I
am not at all inclined to interfere with the proceedings by
invoking jurisdiction under Article 226 of the Constitution of
India. Hence the writ petition is not sustainable and the
W.P(C) No.17361 of 2010-U 3
same is liable to be dismissed.
4. However, learned counsel for the petitioners
made an appeal to this Court to permit payment of the
entire balance within a reasonable time in instalments. It is
submitted that the petitioners are not intending to peruse
any statutory remedy and that they are ready to
relinquishing all challenges with respect to proceedings
now initiated.
5. On the basis of an interim order issued by this
Court on 4.6.2010, the petitioners had remitted a sum of
Rs.2,00,000/-. Considering the facts and circumstances
attendant in this case, eventhough interference on merits is
not at all possible, I am inclined to show indulgence in
permitting the petitioners to pay off the balance amount
within a reasonable time, in instalments.
6. In the result, the writ petition is disposed of
directing the respondents to keep in abeyance further
coercive steps for dispossession and sale of the secured
assets, provided the petitioners remit the entire balance in 7
W.P(C) No.17361 of 2010-U 4
(seven) equal monthly instalments, falling due on or before
15.11.2010 and on or before the 15th day of succeeding
months.
7. It is made clear that on the event of default in
payment of any of the instalments, the respondents will be
free to proceed with further steps based on the notice
already issued and on such event, the petitioners are
precluded from raising any subsequent challenge against
such proceedings, either before this Court or before any
other forum.
Sd/-
C.K.ABDUL REHIM
JUDGE
//True Copy//
P.A to Judge
ab